HOANG VAN SINH v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 25/2020

[2020] HKCA 486

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 25 OF 2020

(ON APPEAL FROM HCAL 1659/2018)

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J U D G M E N T

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Hon Lam VP (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge KW Lung (“the Judge”) dated 9 January 2020 (“the Judge’s Decision”) [2020] HKCFI 119, refusing leave to apply for judicial review. The intended judicial review is against the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 3 July 2018 (“the Board’s Decision”), which upheld the decision of the Director of Immigration’s (“the Director”) decision dated 17 February 2017 (“the Director’s Decision”).

2.  On 17 January 2020, the Applicant gave written consent that the appeal can be processed on the paper by the court without an oral hearing. 

The Background

3.  The Applicant is a national of Vietnam.  He came to Hong Kong illegally through Mainland China on 30 November 2013.  He was arrested by police on 20 February 2014.  He lodged a non-refoulement claim on 27 February 2014.

4.  The details of the Applicant’s claim and his personal background were set out in paragraphs 8 and 9.1 to 9.61 of the Director’s Decision, and paragraphs 8 to 11 of the Board’s Decision. 

5.  In gist, the Applicant claimed if he returned to Vietnam, he would be harmed or even killed by the Vietnamese authorities due to his ethnic origin of being H’mong and his religious belief as a Protestant/Christian. 

6.  The Applicant alleged that the Vietnam government had persistently forced people to abandon their religious faiths.  According to him, between May to October 2013, he was subjected to physical harm by the Vietnam People’s Public Security over several incidents. 

The Director’s Decision

7.  By the Director’s Decision, the Director decided against the applicant’s claim because he found the Applicant’s claim was unsubstantiated.[1]  The Director’s Decision covered the BOR 3 risk[2], the persecution risk[3], the torture risk[4] and the BOR 2 risk.[5] 

The Board’s Decision

8.  The Applicant appealed against the Director’s Decision to the Board.  He attended a hearing before the Adjudicator on 9 May 2018. 

9.  The Board considered the inconsistencies between the evidence given to the Director and to the Board and the Applicant’s explanation thereof.[6]

10.  In its decision of 3 July 2018, the Board did not find the Applicant to be a truthful witness.  It found that the Applicant had made up his claims for non-refoulement protection in Hong Kong.[7]  The Board further did not accept that the Applicant was of H’mong ethnicity or Protestant religion, or that he had been involved with any political protests.  It also did not accept that he was arrested, tortured, assaulted or suffered by having his fingers crushed or that he suffered psychological pain or torment in Vietnam.[8] The Board’s analysis on credibility of the Applicant was set out at paragraphs 77 to 88 of the decision.

The Judge’s Decision

11.  The Applicant filed a Form 86 on 17 August 2018, seeking leave to apply for judicial review against the Board’s Decision. 

12.  In his affirmation in support of the application, the Applicant simply said that it would be unfair to return him to Vietnam.  

13.  At the hearing, the Judge confirmed with the Applicant that he had a fair interview with the immigration officer and a fair hearing before the Adjudicator.  He also confirmed that he understood the Director’s Decision as his lawyer had explained to him.  He could also understand it himself.[9] 

14.  The Judge refused to grant the Applicant leave to apply for judicial review and explained as follows in paragraphs 17 to 20 of the Form CALL-1 [2020] HKCFI 119:

“ 17. It is quite obvious that, apart from some fundamental facts such as his nationality, the Board did not accept the facts as stated by the applicant in support of his claim. Therefore, the applicant had no factual basis for his claim. Those grounds above are quite irrelevant.

18. The Court of Appeal in Re: Moshsin Ali [2018] HKCA 549 held that the findings of fact by the Adjudicator was, subject to judicial review, final [42]. There is no ground to challenge the Board’s finding.

19. The applicant fails to show that he has a reasonable chance of success in his proposed judicial review.

CONCLUSION

20. Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave to apply for the intended judicial review.  Accordingly, I dismiss his application.”

The present appeal

15.  The Applicant filed the Notice of Appeal on 17 January 2020.  In that document, the Applicant did not set out any ground pinpointing any errors of law on the part of the Judge.  Instead, the Applicant reiterated his factual allegations raised before the Board.   

16.  In the Applicant’s written submissions dated 4 May 2020, the Applicant again repeated his factual case in support of his claims.

17.  Those allegations have been considered but rejected by the Board.

Discussion

18.  The relevant principles regarding appeals on non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigraiton [2018] HKCA 524 at [14]. 

19.  In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board Assessment of evidence and COI materials and risk of harm, state protection and viability of international relocation are primarily within the province of the Board (and the Director).  The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board. 

20.  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but were not raised before the judge.  In determining an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge has made errors of law or failed to take into account of relevant matters already placed before the court or was otherwise plainly wrong.

21.  In addition, in an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by an applicant.  If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed.  It is not the role of the Court of Appeal to examine the decision of the Board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the time limit in Order 53, rule 4(1) of the Rules of the High Court, Cap 4A. 

22.  In light of the above-mentioned principles, we do not find any merits in the Applicant’s appeal.  In a nutshell, the Applicant was aggrieved by the Board’s rejection of his claim and disbelieving him.  

23.  The Judge was correct at [15] of the Form CALL-1 [2020] HKCFI 119 in alluding to the fact that the Applicant did not complain about the procedural fairness of the process.  In respect of the assessment of evidence and factual findings, the Judge held at [18] that there was no ground to challenge the same.

24.  In Re Aioub Ali [2019] HKCA 1329 at [17], it was held that the correct approach in a judicial review for considering assessment of evidence and finding of fact is as follows:

“ Assessment of evidence, COI materials, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The Court will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board.”

25.  It was further held at [20] in that case that the judge had to assess the matter by reference to the grounds of challenge advanced by an applicant.

26.  In the materials placed by the Applicant before the Judge in the present case, he had not formulated any specific public law ground to challenge the findings by the Board.  Instead, in his affirmation of 17 August 2018 (which was repeated as his ground of appeal in the notice of appeal of 17 January 2020), he simply reiterated part of his factual case[10] which had been rejected by the Board.  In substance, the Applicant asked the Court to overturn the findings by the Board. 

27.  As stated above, it is not the function of the Court in a judicial review to proceed as if the application is a further tier of appeal.  So long as the Court is satisfied after anxious scrutiny that process before the Board was fair and its decision was made after taking account of all relevant matters and supported by reasons (so that it is not Wednesbury unreasonable or irrational), the Court will not intervene.

28.  As we said above, the Board gave detail reasons at paragraphs 77 to 88 of its decision in rejecting the Applicant’s involvement in the incidents which the Board accepted to have occurred[11].  Having applied our mind to those reasons with anxious scrutiny[12], we are unable to see any basis for suggesting that the findings of the Board were irrational. 

29.  Whilst the Judge was terse in his reason for rejecting the factual challenge (and to demonstrate that he had applied anxious scrutiny to the matter he should allude to the reasons given by the Board in rejecting the Applicant’s case), he was correct in essence in holding that the Applicant had not advanced any valid ground for challenging the findings by the Board.

30.  For the reasons given above, we dismiss the appeal.

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